J-McDaniel Construction Co. v. Dale E. Peters Plumbing Ltd.

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SUPREME COURT OF ARKANSAS
No. CV-13-950
J-MCDANIEL CONSTRUCTION Opinion Delivered June 19, 2014
COMPANY, INC.; JOHN B.
MCDANIEL; and BARBARA G. APPEAL FROM THE PULASKI
MCDANIEL COUNTY CIRCUIT COURT, SIXTH
APPELLANTS DIVISION
[NO. CV-2009-7490]
V.
HONORABLE TIMOTHY DAVIS
FOX, JUDGE
DALE E. PETERS PLUMBING LTD.,
d/b/a DALE PETERS PLUMBING AND REVERSED AND REMANDED.
IRRIGATION; ROBERT BOSTIC
HAULING AND EXCAVATING, INC.,
d/b/a BOBBY BOSTIC HAULING AND
EXCAVATING; ROBERT BOSTIC,
INDIVIDUALLY; and ESQUIRE
MARBLE COMPANY
APPELLEES
CLIFF HOOFMAN, Associate Justice
Appellants, J-McDaniel Construction Company, Inc., John B. McDaniel, and Barbara
G. McDaniel (collectively referred to as “McDaniel”), appeal from an order of the Pulaski
County Circuit Court granting summary judgment in favor of appellees, Dale E. Peters
Plumbing Ltd., d/b/a Dale Peters Plumbing and Irrigation (“Peters”); Robert Bostic Hauling
and Excavating, Inc., d/b/a Bobby Bostic Hauling and Excavating, and Robert Bostic
individually (“Bostic”); and Esquire Marble Company (“Esquire”). On appeal, McDaniel
argues that the circuit court erred by dismissing its third-party claims against appellees. We
have jurisdiction of this case pursuant to Ark. Sup. Ct. R. 1-2(a)(7) (2013), as this is a
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subsequent appeal to this court. We reverse and remand.
McDaniel began construction on a new home in Little Rock in late 2005 and hired
Peters, Bostic, and Esquire as subcontractors to complete certain tasks necessary to build the
home. Peters installed plumbing; Bostic performed excavation, fill, compaction, and site-
preparation work; and Esquire installed a shower in the master bedroom. Susan and David
Conrad (“the Conrads”) purchased the home from McDaniel on June 2, 2006. Shortly
thereafter, the Conrads noticed several problems with the home, such as settlement cracks in
the walls, misalignment of doors, and a foul odor in the master bathroom. The Conrads
notified McDaniel, and some attempts were made by McDaniel and Peters to remedy the
problems from fall 2006 through summer 2009.
After these attempts were unsuccessful, the Conrads filed a complaint in the Pulaski
County Circuit Court against McDaniel on December 2, 2009, alleging negligence and
breach of the implied warranties of habitability, sound workmanship, and proper construction.
The Conrads later amended their complaint on November 16, 2010, to add claims of
fraudulent transfer and to pierce the corporate veil of J-McDaniel Construction Company
and hold Barbara and John McDaniel personally liable. The Conrads also alleged that due to
an agreement with McDaniel, the statute of limitations had been tolled until December 2,
2009.
On December 23, 2009, McDaniel filed an answer and a third-party complaint against
Peters and Bostic, asserting that any foundation problems with the Conrads’ home were
caused by an improperly connected shower drain in the master bathroom and faulty
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excavation, fill, or site preparation. The complaint alleged breach of contract, negligence, and
breach of the implied warranties of habitability, workmanlike performance, sound
workmanship, and proper construction. McDaniel asked the court to enter judgment against
Bostic and Peters for an amount equal to any and all liability that might be assessed against
McDaniel as a result of the Conrads’ complaint. McDaniel filed an amended third-party
complaint on March 1, 2011, and added Esquire as a third-party defendant, asserting that it
had improperly installed a marble shower in the master bathroom of the home. McDaniel
also added claims against all third-party defendants for contribution and indemnity pursuant
to common law and Ark. Code Ann. § 16-61-201.
On December 10, 2010, Peters filed a cross-claim against Bostic, seeking contribution,
indemnity, and apportionment of fault pursuant to Ark. Code Ann. § 16-55-201. Bostic then
filed a counter cross-claim against Peters, also seeking contribution, indemnity, and the right
to apportionment of fault. On December 21, 2010, Bostic filed a motion for summary
judgment on Peters’s cross-claim, which the circuit court denied on March 9, 2011.
On April 20, 2011, Peters filed a motion for summary judgment, contending that it
was entitled to judgment as a matter of law on the third-party complaint because the claims
for negligence and for breach of contract were both barred by the statute of limitations,
because McDaniel could not prove breach of a specific contractual term where the parties did
not have a written contract, and because the implied warranties did not extend from
McDaniel to Peters. On May 17, 2011, Bostic filed a motion for summary judgment on the
third-party complaint and a motion for reconsideration of the denial of its motion for
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summary judgment on Peters’s cross-claim. Bostic argued that the claims for negligence,
breach of contract, and breach of the implied warranties were time-barred; that McDaniel
could not prove that Bostic had breached a specific term of the unwritten contract; that there
is no implied warranty between a general contractor and a subcontractor; that equitable
indemnity did not apply because this was an oral agreement without express terms; that
Arkansas had abolished joint liability except in certain circumstances that were not applicable
in this case; and that there is no general right to apportionment of fault. Bostic contended
that because McDaniel had no valid claim against Bostic, it was also entitled to summary
judgment on Peters’s cross-claim. Subsequently, Peters filed a supplemental motion for
summary judgment, which incorporated Bostic’s arguments as to the third-party complaint.
On May 18, 2011, Esquire filed a motion for summary judgment, arguing that
although McDaniel alleged a breach-of-contract claim against Esquire, any claim he had was
for negligence; that the statute of limitations had run on any claim for negligence; that implied
warranties of habitability, sound workmanship, and proper construction do not apply to the
relationship between Esquire and McDaniel; that McDaniel was not entitled to indemnity
where there was no express indemnity agreement; and that McDaniel was not entitled to
contribution because the Civil Justice Reform Act of 2003 eliminated a claim for
contribution, as a defendant is only required to pay its several share. On May 26, 2011, Peters
filed a cross-claim against Bostic and Esquire, asserting that Peters was entitled to
apportionment of fault, contribution, and indemnity. Both Bostic and Esquire answered the
cross-claim and denied liability.
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A hearing was held on the motions on May 27, 2011, and on August 22, 2011, the
circuit court entered an order granting Peters’s motion for summary judgment, Bostic’s
motion for reconsideration of the denial of its motion for summary judgment on Peters’s
cross-claim, and Esquire’s motion for summary judgment. Peters, Bostic, and Esquire were
dismissed with prejudice. The court did not state its reasons for granting the third-party
defendants’ respective motions. On December 19, 2011, the circuit court entered an order
stating that the Conrads had settled their claims against McDaniel and that the matter was
dismissed with prejudice. McDaniel filed a timely notice of appeal from the August 22 order.
However, we dismissed the appeal for lack of a final, appealable order because there remained
unresolved claims by McDaniel against Bostic, by Bostic against Peters, and by Peters against
Esquire. See J-McDaniel Constr. Co. v. Dale E. Peters Plumbing Ltd., 2013 Ark. 177.
After the appeal was dismissed, McDaniel filed a motion for reconsideration with the
circuit court on June 14, 2013, arguing that the General Assembly’s enactment of Act 1116
of 2013, which amended the Uniform Contribution Among Tortfeasors Act, made it clear
that a cause of action for contribution still exists subsequent to the modification of joint and
several liability, contrary to the assertions of the third-party defendants in this case. McDaniel
also filed a notice of resolution of the Conrads’ claims against McDaniel and an amended
release and settlement agreement, wherein all claims by the Conrads against McDaniel, Bostic,
Peters, and Esquire were released pursuant to payment of the settlement amount.
The circuit court did not specifically rule on McDaniel’s motion for reconsideration
and entered a final order on July 2, 2013, in which it granted Bostic’s motion for summary
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judgment on the third-party complaint and dismissed with prejudice all claims by McDaniel
against Bostic; granted Bostic’s motion for summary judgment on the cross-claim filed by
Peters and dismissed with prejudice all claims by Peters against Bostic; granted Peters’s motion
for summary judgment on the third-party complaint and dismissed with prejudice all claims
by McDaniel against Peters; granted Esquire’s motion for summary judgment on the third-
party complaint and dismissed with prejudice all claims by McDaniel against Esquire;
dismissed with prejudice all counter cross-claims by all third-party defendants against one
another; reaffirmed its prior order dismissing with prejudice all claims by the Conrads against
McDaniel; and dismissing with prejudice any remaining claims by any and all parties.
McDaniel filed a timely notice of appeal from this order on July 30, 2013.
McDaniel argues on appeal that the circuit court erred in granting appellees’ motions
for summary judgment and in dismissing its third-party complaint. Because McDaniel’s
second point on appeal concerning the applicability of Act 1116 of 2013 to this case also
relates to whether its complaint was properly dismissed, these points will be discussed
together.
Our law is well settled that summary judgment is to be granted by a trial court only
when it is clear that there are no genuine issues of material fact to be litigated, and the party
is entitled to judgment as a matter of law. City of Farmington v. Smith, 366 Ark. 473, 237
S.W.3d 1 (2006). Once the moving party has established a prima-facie entitlement to
summary judgment, the opposing party must meet proof with proof and demonstrate the
existence of a material issue of fact. Id. On appellate review, we determine if summary
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judgment was appropriate based on whether the evidentiary items presented by the moving
party in support of the motion leave a material fact unanswered. Id. We view the evidence
in the light most favorable to the party against whom the motion was filed, resolving all
doubts and inferences against the moving party. Id. Our review focuses not only on the
pleadings, but also on the affidavits and other documents filed by the parties. Id.
In McDaniel’s third-party complaint, it alleged causes of action for breach of contract;
negligence; breach of the implied warranties of habitability, workmanlike performance, sound
workmanship, and proper construction; and indemnity and/or contribution. Appellees argued
in their summary-judgment motions that McDaniel’s claims for breach of contract,
negligence, and breach of implied warranties were time-barred because the three-year statute
of limitations had expired as to these claims pursuant to Ark. Code Ann. § 16-56-105. On
appeal, McDaniel does not contest the dismissal of these direct claims against appellees but
instead focuses its argument on its derivative claims of contribution and indemnity,
contending that these claims were erroneously dismissed by the circuit court.
Under the Uniform Contribution Among Tortfeasors Act (“UCATA”), Ark. Code
Ann. §§ 16-61-201 et seq. (Repl. 2005), which was adopted in 1941, a right of contribution
exists among joint tortfeasors. See Ark. Code Ann. § 16-61-202(1). “Joint tortfeasors” are
defined as two or more persons who are jointly or severally liable in tort for the same injury.
Ark. Code Ann. § 16-61-201. “A joint tortfeasor is not entitled to a money judgment for
contribution until he or she has by payment discharged the common liability or has paid more
than his or her pro rata share thereof.” Ark. Code Ann. § 16-61-202(2). However, pursuant
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to Ark. Code Ann. § 16-61-207, a defendant seeking contribution in a tort action is not
required to wait until he or she has paid the judgment to implead in the primary action other
persons who are or may be liable to the defendant for all or part of the plaintiff’s claim against
the defendant. See also Ark. R. Civ. P. 14 (2013). Arkansas Code Annotated section 16-61-
206 further provides that the Act does not impair any right to indemnity under existing law.
In response to McDaniel’s argument that it has a valid claim against appellees for
contribution and/or indemnity due to the damages sought by the Conrads, appellees first
contend that this third-party claim is moot because the Conrads’ complaint against McDaniel
was dismissed with prejudice by the circuit court after the Conrads had reached a voluntary
settlement with McDaniel.1 Citing Martin Farm Enterprises, Inc. v. Hayes, 320 Ark. 205, 895
S.W.2d 535 (1995), appellees assert that the dismissal of the primary complaint renders a
third-party complaint moot. However, in Martin Farm, the third-party complaint was moot
because the defendant’s summary-judgment motion in the primary action was granted, and
there was no longer any liability on the part of the defendant for which a derivative claim for
contribution could exist. In this case, the Conrads settled their claims against McDaniel, and
the complaint was dismissed at the request of these two parties. Thus, McDaniel’s third-party
complaint for contribution and/or indemnity is not moot. In fact, Arkansas Code Annotated
1
Appellee Peters also contends as part of its mootness argument that McDaniel is
seeking a remedy that it would not have been entitled to if it had not voluntarily settled the
lawsuit. However, Peters fails to develop this argument or to cite any authority in support,
and because it is not apparent without further research that it is well taken, it will not be
considered on appeal. Webb v. Bouton, 350 Ark. 254, 85 S.W.3d 885 (2002).
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section 16-61-202 specifically provides for a contribution claim if or when one tortfeasor has
entered into a settlement with the injured person, as long as the other joint tortfeasor’s liability
to the injured person is extinguished by the settlement, which will be discussed further below.
Appellee Esquire also argues, as a preliminary matter, that McDaniel’s arguments on
appeal cannot be addressed because the circuit court did not make specific findings in its order
granting appellees’ motions for summary judgment. However, in the case that Esquire cites
for this proposition, TEMCO Constr., LLC v. Gann, 2013 Ark. 202, 427 S.W.3d 651, we
declined to address the merits of several grounds for dismissal that were raised in appellees’
motion to dismiss where the circuit court had ruled on only one of the grounds in its order.
Here, the circuit court made no specific findings in its order granting appellees’ motions for
summary judgment and instead generally granted the motions; thus, the circuit court could
have based its ruling on any of the grounds that had been raised. Under Ark. R. Civ. P. 52(a)
(2013), findings of fact and conclusions of law are not necessary on decisions of motions.
There is therefore no merit to Esquire’s contention that McDaniel’s arguments on appeal are
not preserved due to the failure of the circuit court to make specific findings.
In their next argument in response to McDaniel’s assertion that the circuit court
improperly dismissed its valid claim for contribution, appellees contend that McDaniel’s claim
for contribution is no longer cognizable subsequent to the enactment of the Civil Justice
Reform Act of 2003 (“CJRA”), which abolished joint liability in all civil actions. See Ark.
Code Ann. § 16-55-201 et seq. (Supp. 2013). Because McDaniel would be liable for only
his proportionate share of fault under the CJRA, appellees argue that a claim for contribution
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is not necessary under the facts of this case. As support for this contention, appellees cite to
this court’s opinion in St. Vincent Infirmary Med. Ctr. v. Shelton, 2013 Ark. 38, 425 S.W.3d
761, where we affirmed the circuit court’s dismissal of a third-party complaint for failure to
state a claim based on the abolition of joint liability under the CJRA. However, as McDaniel
argues, and as it asserted below in its motion for reconsideration subsequent to this court’s
dismissal of the first appeal, the General Assembly has since passed Act 1116 of 2013, which
clarified that a claim for contribution pursuant to the UCATA still exists after the 2003
enactment of the CJRA. Thus, to the extent that the holding in Shelton, supra, conflicts with
the Act, it has been effectively overruled by Act 1116.
While appellees recognize the recent enactment of Act 1116, they first contend that
McDaniel failed to obtain a ruling on the applicability of the Act to this case because the
circuit court did not expressly rule on McDaniel’s motion for reconsideration. However,
while it is well settled that a party must raise an argument below and obtain a ruling in order
to preserve that specific issue for appeal, we have never required that a party obtain a ruling
by the circuit court as to whether a particular case or statute offered in support of the party’s
argument applies to the facts of that party’s case. See Gilliland v. State, 2010 Ark. 135, 361
S.W.3d 279 (stating that an appellant does not have to cite to specific rules to preserve an
evidentiary argument for appeal but that a specific objection is necessary to apprise the trial
court of the error alleged). Furthermore, we note that McDaniel cited to the UCATA in
its complaint and that it was the appellees who asserted that the right to contribution under
the UCATA had been abrogated by the passage of the CJRA. McDaniel’s citation to Act
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1116, which clarified that the UCATA was still applicable to such claims for contribution, was
offered to rebut appellees’ assertions in their motions for summary judgment and was made
prior to the circuit court’s final order. As noted above, the circuit court’s grant of summary
judgment was a general ruling that could have been based on any of the arguments that were
raised by the parties in their motions and responses. Thus, appellees’ argument that we may
not consider the applicability of Act 1116 to this case due to the failure of McDaniel to obtain
a ruling is not persuasive.
Appellees next contend that, even if the issue is preserved for appeal, Act 1116 does
not control this case because the Act should not be applied retroactively. This court discussed
the issue of retroactivity of legislative acts in Steward v. Statler, 371 Ark. 351, 266 S.W.3d 710
(2007):
Generally, retroactivity is a matter of legislative intent, and unless it expressly states
otherwise, we presume the legislature intends for its laws to apply only prospectively.
Any interpretation of an act must be aimed at determining whether retroactive effect
is stated or implied so clearly and unequivocally as to eliminate any doubt. In
determining legislative intent, we have observed a strict rule of construction against
retroactive operation and indulge in the presumption that the legislature intended
statutes, or amendments thereof, enacted by it, to operate prospectively only and not
retroactively. However, this rule does not ordinarily apply to procedural or remedial
legislation.
The strict rule of construction does not apply to remedial statutes that do not
disturb vested rights, or create new obligations, but only supply a new or more
appropriate remedy to enforce an existing right or obligation. Procedural legislation
is more often given retroactive application. The cardinal principle for construing
remedial legislation is for the courts to give appropriate regard to the spirit which
promoted its enactment, the mischief sought to be abolished, and the remedy
proposed. Although the distinction between remedial procedures and impairment of
vested rights is often difficult to draw, it has become firmly established that there is no
vested right in any particular mode of procedure or remedy. Statutes which do not
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create, enlarge, diminish, or destroy contractual or vested rights, but relate only to
remedies or modes of procedure, are not within the general rule against retrospective
operation. In other words, statutes effecting changes in civil procedure or remedy may
have valid retrospective application, and remedial legislation may, without violating
constitutional guarantees, be construed to apply to suits on causes of action which
arose prior to the effective date of the statute.
Id. at 353–54, 266 S.W.3d at 713 (internal citations omitted).
Applying these principles to the present case, it is clear that Act 1116 was intended by
the General Assembly to have retroactive effect. According to the stated purpose of the Act,
which became effective on August 16, 2013,
It is the intent of the General Assembly that the rights afforded to joint tortfeasors by
this act apply with equal force after the modification of joint and several liability as
provided in § 16-55-201, and that none of the rights granted to joint tortfeasors by this
act, including allocation of fault and credits for settlements entered into by other joint
tortfeasors, shall be denied to joint tortfeasors.”
Act of Apr. 11, 2013, No. 1116, § 1, 2013 Ark. Acts 4345, 4346. Furthermore, the Act also
states that, “This act is remedial in nature and applies to all causes of action accruing on or
after March 25, 2003.” Id. § 8, 2013 Ark. Acts at 4348. Not only did the legislature expressly
state that Act 1116 was to have remedial effect, the statutory provisions at issue in this case,
which provide for a right to contribution, remain essentially unchanged from their prior
versions. It is apparent that any changes that were made pursuant to Act 1116 were only
procedural in nature, contrary to the assertions of appellees. See Steward, supra. Thus, as
McDaniel argues, Act 1116 is retroactive and applicable to this case.
Based on Act 1116, McDaniel’s claim for contribution remains a valid cause of action
subsequent to the enactment of the CJRA. Also, as McDaniel argued in its responses to
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appellees’ summary-judgment motions, the right to contribution and/or indemnity is
derivative in nature, and the cause of action does not accrue until one joint tortfeasor pays
more than his or her share of liability. Ark. Code Ann. § 16-61-202(b). Similarly, the statute
of limitations on a claim for contribution or indemnity does not begin to run until payment
is made. Heinemann v. Hallum, 365 Ark. 600, 232 S.W.3d 420 (2006); Ray & Sons Masonry
Contractors, Inc. v. U.S. Fidelity & Guar. Co., 353 Ark. 201, 114 S.W.3d 189 (2003). Thus,
McDaniel’s derivative claims were not time-barred. While Appellees argued that McDaniel
does not have a valid claim for contribution because they could not be liable to the Conrads
due to the running of the statute of limitations, this same argument was rejected in Schott v.
Colonial Baking Co., 111 F. Supp. 13 (W.D. Ark. 1953). The court in Schott stated that under
the UCATA, “the common obligation contemplated by this Act is the common liability of
the tortfeasors to suffer adverse judgment at the instance of the injured person, whether or not
the injured person elects to impose it.” Id. at 24. Thus, even though no common liability
existed at the time of the third-party claim in that case, the appellee still had a contribution
action against the other joint tortfeasor. Id. Appellee Bostic argues that this case is no longer
persuasive authority in light of the abolition of joint liability; however, Bostic cites no
authority for this proposition, and in light of Act 1116, this argument is without merit.
In their final argument in response to McDaniel’s assertion that the circuit court
erroneously dismissed its claim against appellees for contribution, appellees contend that under
Ark. Code Ann. § 16-61-202(d), McDaniel’s settlement with the Conrads must have also
extinguished their liability to the Conrads in order for the claim of contribution to survive.
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The details of the original 2011 settlement in this case were not included in the record;
however, after this court’s dismissal of the parties’ first appeal, McDaniel filed a notice of
resolution and an amended settlement agreement, in which the Conrads expressly released all
the appellees from further liability. Appellees first argue with respect to this amended
settlement agreement that it cannot be considered by this court because there was no ruling
by the circuit court on this agreement. However, appellees do not indicate what relief
McDaniel was requesting by filing this voluntary agreement or what ruling should have been
given by the circuit court. The notice and amended agreement were filed prior to the circuit
court’s final order dismissing McDaniel’s third-party complaint, and the court noted in this
order that all claims by the Conrads against McDaniel had been previously dismissed with
prejudice. Thus, no ruling was necessary with regard to this amended settlement agreement.
Appellees also argue that this 2013 amended settlement agreement was void because
it was executed without any further consideration. In response, McDaniel asserts that the
agreement expressly states that mutual consideration was provided and that “other good and
valuable consideration [was] exchanged, the receipt and sufficiency of which is hereby
acknowledged . . . . ” However, because the circuit court’s initial August 2011 order
dismissing McDaniel’s third-party complaint was entered prior to the parties’ settlement, the
issues surrounding the effect of both the original and amended settlement agreements on
McDaniel’s claim for contribution were not raised in appellees’ motions for summary
judgment and were not considered by the circuit court. Thus, material issues of fact remain
to be decided on this issue that render the circuit court’s grant of summary judgment
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improper.
Similarly, although appellee Bostic asserts that McDaniel made “pivotal admissions”
regarding its liability for the defects in the Conrads’ home that would prevent any claims
against it, McDaniel correctly argues that there are unresolved questions of fact that are raised
in this regard by Peters’s cross-claim, as well as by a civil engineer who was hired to inspect
the home. We therefore reverse and remand the circuit court’s dismissal of McDaniel’s
contribution claim.
With regard to McDaniel’s indemnity claim, appellees contend that summary judgment
was properly granted because there were no written contracts between McDaniel and the
subcontractors, and thus, no express indemnity clauses. McDaniel argues, however, that a
claim for indemnity can be based on an implied or quasi-contract and that equitable
indemnity can also exist where there is a special relationship between the parties, such as
where an indemnitor breached a duty owed to the indemnitee. See Larson Machine, Inc. v.
Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). In Larson, this court explained that “[i]t has
been appropriately said that the doctrine of indemnity is based upon the equitable principles
of restitution which permit one who is compelled to pay money, which in justice ought to
be paid by another, to recover the sums so paid unless the payor is barred by the wrongful
nature of his own conduct.” Id. at 213-14, 600 S.W.2d at 12.
McDaniel admits that there were no express indemnity clauses between it and appellees
in this case but argues that it had longstanding relationships with both Bostic and Peters that
could give rise to implied indemnity. While McDaniel correctly notes that there are no
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Arkansas cases holding that there is a “special relationship” between a contractor and
subcontractor sufficient to form the basis of a claim for equitable indemnity, it cites cases from
other jurisdictions that have found such a relationship to exist. See, e.g., First Gen. Servs. of
Charleston, Inc. v. Miller, 445 S.E.2d 446 (S.C. 1994); Noble Steel, Inc. v. Williams Brothers
Concrete Constr. Co., 49 P.3d 766 (Okla. Civ. App. 2002); Stonegate Homeowners Assoc. v.
Staben, 144 Cal. App. 4th 740 (2006). We agree with McDaniel that unresolved questions
of fact remain surrounding the extent and nature of the relationship between McDaniel and
appellees and whether this relationship could give rise to a claim for equitable indemnity.
Appellees further argue that McDaniel’s voluntary settlement with the Conrads
prevents it from pursuing a claim for indemnity from them. Citing Carpetland of NWA, Inc.
v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991), appellees contend that the right to
indemnity is extinguished when the indemnitee voluntarily settles the underlying claim and
that McDaniel has the burden to prove that the settlement was made under a legal compulsion
rather than made as a mere volunteer. However, as discussed above with regard to the claim
for contribution, the circumstances surrounding McDaniel’s settlement and amended
settlement with the Conrads were not raised in appellees’ motions for summary judgment, nor
were they considered by the circuit court in its decision to dismiss the third-party complaint.
Because there remain unresolved issues of fact regarding whether McDaniel has a right of
indemnity against appellees under the facts in this case, we reverse and remand the circuit
court’s dismissal of this claim as well.
Reversed and remanded.
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Dover Dixon Horne PLLC, by: Wm. Dean Overstreet and Thane J. Lawhon, for appellants.
Friday, Eldredge & Clark, LLP, by: James C. Baker, Jr., and Jamie Huffman Jones, for
appellees Robert Bostic Hauling and Excavating, Inc., and Robert Bostic.
Matthews, Sanders & Sayes, by: Doralee Chandler and Roy Gene Sanders, for appellee
Esquire Marble Company.
The Barber Law Firm, by: Micheal L. Alexander and Rick Behring, Jr., for appellee Dale
E. Peters Plumbing Ltd.
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